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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AVEK PAILIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1265 EDA 2018

Appeal from the Judgment of Sentence April 12, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0010227-2016

BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 28, 2019

Appellant, Avek Pailin, appeals from the judgment of sentence entered 

on April 12, 2018. We affirm.

Following an early-morning traffic stop, the police arrested Appellant for 

violating the Pennsylvania Uniform Firearms Act. See 18 Pa.C.S.A. §§ 6101

et seq. Appellant filed a pre-trial motion to suppress the firearm that the 

police discovered in the vehicle he was driving; within the motion, Appellant 

claimed that the trial court must suppress the firearm, as the police did not 

have reasonable suspicion or probable cause to stop or search his vehicle. 

Appellant’s Motion to Suppress, 9/6/17, at 1-3.

During the October 11, 2017 suppression hearing, the Commonwealth 

presented the testimony of Philadelphia Police Sergeant Daniel Ayers. 

Sergeant Ayers testified that, at approximately 2:35 a.m. on March 31, 2016,

he was in full uniform and driving a marked police car when he observed a red 
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Ford Fusion with an Illinois license plate “make an abrupt turn onto 5200 

Poplar Street without signaling. It proceeded westbound on Poplar to 53rd, 

made a quick right turn at a high rate of speed down 53rd Street onto 

Thompson Street.” N.T. Suppression Hearing, 10/11/17, at 5-6. Sergeant 

Ayers testified that, when he finally caught up to the vehicle, he saw that the 

vehicle “had already pulled over and parked. [Appellant] was exiting the 

driver’s door. There [were] two females and a second male exiting from the 

passenger’s side and began walking away from the car.” Id. at 6. Sergeant 

Ayers testified that he pulled up to the vehicle and activated the lights on his 

patrol car, in order to conduct “a vehicle investigation for the original violation 

for failure to signal when [the vehicle] turned onto Poplar Street.” Id.

Sergeant Ayers testified:

[Appellant] had no ID on him, he was nervous, kept asking 

questions. He stated it was a rental car, it was rented by his 

cousin, he couldn’t provide a name of his cousin or any 

agreement for the vehicle.

Based on his nervousness, [my partner and I] placed 

[Appellant] and the other male in our vehicle, and the two 

females stood on the curb. 

At this point, I conducted a quick search inside of the vehicle. 

At which point under the front driver’s seat I observed and 

recovered a black Taurus Millennium PT 111 [nine-millimeter 

semi-automatic pistol]. . . . It was loaded with 11 rounds in 

the magazine and one round in the chamber. 

The firearm was directly under the driver’s seat and the seat 

itself was reclined all the way back to touching the backseat. 

So there was no way for anybody else to get behind that seat.
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At that point[, Appellant] was placed into custody for a 

firearms violation since it was right where he was at in the 

driver’s seat. . . .

I conducted a [Department of Motor Vehicles] check on 

[Appellant] and that came back as an expired license. . . . 

Once I got that information, I contacted the Parking Authority 

and the car was live stopped and towed to the Parking 

Authority lot [because Appellant did not have a valid driver’s 

license].

Id. at 6-8.

The trial court denied Appellant’s suppression motion and Appellant 

proceeded to a bench trial. During this trial, the parties incorporated Sergeant 

Ayers’ suppression hearing testimony and stipulated that: the recovered 

firearm was operable; Appellant did not have a license to carry a firearm; and, 

Appellant had a prior felony, which rendered him ineligible to possess a 

firearm. N.T. Trial, 10/11/17, at 39-40.

The trial court found Appellant guilty of persons not to possess firearms, 

firearms not to be carried without a license, and carrying firearms on public 

streets in Philadelphia.1 On April 12, 2018, the trial court sentenced Appellant

to serve a term of four to eight years in prison, followed by three years of 

probation, for his convictions.

Appellant filed a timely notice of appeal. He raises two claims to this 

Court:

1. Did the [trial] court err in finding [Appellant] did not have 

standing to argue a motion to suppress in light of the United 

States Supreme Court’s ruling in Byrd v. United States[, 

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1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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___ U.S. ___, 138 S.Ct. 1518 (2018)] when there was no 

evidence that [Appellant], who was the undisputed driver of 

the vehicle, did not have permission to drive the vehicle in 

question from the lawful renter[?]

2. Did the [trial] court err by finding the gun would have been 

“inevitably discovered” when the vehicle was improperly 

live-stopped, there was no indication on the record that the 

vehicle was parked improperly, and no indication that the 

driver did not have permission to possess the vehicle from 

the lawful renter[?]

Appellant’s Brief at 7 (some internal capitalization omitted).

Appellant claims that the trial court erred when it denied his motion to 

suppress. Appellant’s Brief at 12-16. This claim fails.

“Once a motion to suppress evidence has been filed, it is the 

Commonwealth's burden to prove, by a preponderance of the evidence, that 

the challenged evidence was not obtained in violation of the defendant's 

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. Super. 

2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an appeal 

from the denial of a motion to suppress, our Supreme Court has declared:

Our standard of review in addressing a challenge to a trial 

court's denial of a suppression motion is whether the factual 

findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. When 

reviewing the ruling of a suppression court, we must consider 

only the evidence of the prosecution and so much of the 

evidence of the defense as remains uncontradicted when read 

in the context of the record.... Where the record supports the 

findings of the suppression court, we are bound by those facts 

and may reverse only if the legal conclusions drawn 

therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal 

citations omitted). “It is within the suppression court's sole province as 
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factfinder to pass on the credibility of witnesses and the weight to be given 

their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. 

Super. 2006). Moreover, our scope of review from a suppression ruling is 

limited to the evidentiary record that was created at the suppression hearing. 

In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

We have explained:

A defendant moving to suppress evidence has the preliminary 

burden of establishing standing and a legitimate expectation 

of privacy. 

Standing requires a defendant to demonstrate one of the 

following: (1) his presence on the premises at the time of 

the search and seizure; (2) a possessory interest in the 

evidence improperly seized; (3) that the offense charged 

includes as an essential element the element of possession; 

or (4) a proprietary or possessory interest in the searched 

premises. A defendant must separately establish a legitimate 

expectation of privacy in the area searched or thing seized. 

Whether defendant has a legitimate expectation of privacy is 

a component of the merits analysis of the suppression 

motion. The determination whether defendant has met this 

burden is made upon evaluation of the evidence presented 

by the Commonwealth and the defendant.

With more specific reference to an automobile search, this 

Court has explained as follows: generally under Pennsylvania 

law, a defendant charged with a possessory offense has 

automatic standing to challenge a search. However, in order 

to prevail, the defendant, as a preliminary matter, must show 

that he had a privacy interest in the area searched.

Commonwealth v. Maldonado, 14 A.3d 907, 910-911 (Pa. Super. 2011) 

(internal quotations and citations omitted); see also Commonwealth v. 

Jones, 874 A.2d 108, 120 (Pa. Super. 2005) (holding: where the defendant 

was the driver of a rental car, the defendant did not have an expectation of 
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privacy in the car because the “return date [on the rental automobile] had 

expired, [the defendant] was not the named lessee, the named lessee was 

not in the automobile, and [the defendant] was not authorized to drive the 

automobile”); Commonwealth v. Burton, 973 A.2d 428, 436 (Pa. Super.

2009) (en banc) (holding that the defendant did not have an expectation of 

privacy in a vehicle, where he did not own the vehicle and where he “offered 

no evidence to explain his connection to the vehicle or his connection to the 

registered owner of the vehicle”); Commonwealth v. Cruz, 21 A.3d 1247, 

1251–1252 (Pa. Super. 2011) (holding that the defendant did not 

demonstrate that he had an expectation of privacy in the vehicle he was 

driving at the time of the valid stop because the defendant “presented no 

evidence that he owned the vehicle, that it was registered in his name, or that 

he was using it with the permission of the registered owner”).

The Commonwealth charged Appellant with possessory offenses; hence, 

Appellant had automatic standing to challenge the vehicle search. 

Nevertheless, in order to prevail on his suppression motion, Appellant bore 

the burden of establishing a reasonable expectation of privacy in the vehicle.

See Maldonado, 14 A.3d at 911. Appellant did not satisfy his burden of 

production in this case.

During the suppression hearing, the Commonwealth presented evidence 

tending to show that Appellant was not the owner of the vehicle, did not rent 
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the vehicle, did not know the individual who rented the vehicle,2 and had no 

authority to drive the vehicle. See N.T. Suppression Hearing, 10/11/17, at 

6-8. Appellant presented no evidence to the contrary. Therefore, in this case, 

there was no evidence that Appellant or his passengers owned or rented the 

vehicle. Likewise, there was no evidence that Appellant or his passengers had 

authorization or permission from the registered owner or renter to operate the 

vehicle. As such, Appellant failed to prove he had a privacy interest in the 

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2 As Sergeant Ayers testified, Appellant claimed that his cousin rented the 

vehicle. However, Appellant “couldn’t provide a name of his cousin or any 

agreement for the vehicle.” N.T. Suppression Hearing, 10/11/17, at 6. We 

conclude that Appellant’s invocation of an unnamed individual and his 

unsubstantiated claim of permission by that unnamed person do not establish 

that Appellant had permission to operate the vehicle and, thus, do not 

establish that Appellant had a reasonable expectation of privacy in the vehicle. 

See Maldonado, 14 A.3d at 911-912 (holding that the defendant failed to 

satisfy his burden of establishing a reasonable expectation of privacy in the 

vehicle, where the vehicle was owned by his girlfriend and where the 

defendant did not put forth any evidence that his girlfriend gave him 

permission to drive her vehicle). Moreover, we note that the trial court 

expressly held: “[b]ased on the totality of the [] circumstances, [Appellant’s] 

expired license, no rental agreement[,] and inability to provide the name of

the authorized renter of the vehicle to corroborate that he had permission to 

drive the vehicle, [Appellant] in this case does not have a reasonable 

subjective expectation of privacy shielding him from the search done by the 

officer.” Trial Court Opinion, 7/20/18, at 4-5.
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vehicle and, therefore, the trial court did not err in denying Appellant’s 

suppression motion.3, 4 Appellant’s claim to the contrary fails.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/28/19

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3 Within Appellant’s brief, Appellant claims that the United States Supreme 

Court’s recent opinion in Byrd entitles him to relief because, in Byrd, the 

Supreme Court held: “as a general rule, someone in otherwise lawful 

possession and control of a rental car has a reasonable expectation of privacy 

in it even if the rental agreement does not list him or her as an authorized 

driver.” Appellant’s Brief at 13, quoting Byrd, 138 S.Ct. at 1524. Appellant’s 

quotation of Byrd is accurate. However, Byrd does not provide Appellant 

with an avenue of relief because, as we have explained above, Appellant failed 

to establish that he was in “lawful possession and control of” the vehicle. See 

Byrd, 138 S.Ct. at 1524 and 1529 (noting that “[n]o matter the degree of 

possession and control, the car thief would not have a reasonable expectation 

of privacy in a stolen car”).

4

In light of our disposition, Appellant’s second claim – that the trial court 

“erred in finding the gun would have been ‘inevitably discovered’” – is moot. 

See Appellant’s Brief at 14-16.